A judge has ordered a hearing that will factor into his decision on whether or not to stop an Ocean City ordinance that bars women from going toplesswhile the case is ongoing in the U.S. District Court of Maryland.

The hearing will address the plaintiff's motion to temporarily strike down the Ocean City ordinance prohibiting women from being topless in the town's public spaces. It is unclear from recent court documents if the judge will make a decision on the motion at the September hearing.

Chief Judge James Bredar called the hearing after receiving arguments from both the plaintiffs and the defendant about the preliminary injunction motion. It will be held at the U.S. Courthouse in Baltimore on Sept. 21.

Salisbury resident Chelsea Eline filed the lawsuit in January, along with Rose MacGregor of Salisbury; Megan Bryant of Lothian, Maryland; Christine Coleman of Long Island, New York; and Angela Urban of Pittsburgh. Devon Jacob, an national civil rights attorney, represents the five plaintiffs. Eline previously used the pseudonym Covington in interactions with local officials and Delmarva Now.

In the lawsuit, the plaintiffs argue they have the "legal right to be bare-chested, in public, in the same places that men are permitted to be bare-chested, for purposes other than breastfeeding."

The plaintiffs also claim the emergency ordinance created by Ocean City to stop women from going topless in the town's public areas violates an equal protection clause of the 14th Amendment of the Constitution and the Declaration of Rights to the Maryland Constitution.

Ocean City's attorneys argue individuals do not have the right to appear nude in public. Bruce Bright and Guy Ayres, of the Ocean City law firm Ayres, Jenkins, Gordy & Almand, P.A., are representing the town in this case.

The defendant's attorneys also claim it is within the government's interest to preserve this gender-based distinction as "females baring their breasts in public, although not offensive to everyone, is still seen by society as unpalatable," according to court documents.

In past statements, town officials have said they are strongly opposed to women being topless in Ocean City's public spaces in order to protect the rights of families who visit the area.

In preparation for the meeting next month, the judge made six observations.

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Ocean City Mayor Rick Meehan speaks as he agrees to pass the emergency ordinance that prohibits offenses involving public nudity or those in a state of nudity on Saturday, June 10, 2017.(Photo: Staff Photo by Megan Raymond)

In his first observation, Bredar uses the 1991 United States v. Biocic case as an example of a potential precedent. The plaintiff of this lawsuit cited constitutional injury after violating a public nudity ban by going topless on a national wildlife refuge. The United States Court of Appeals for the Fourth Circuit ultimately upheld the ban, ruling against the plaintiff.

In the Biocic case, the court stated that the ban should be upheld because it "protected the moral sensibilities of a substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens' anatomies that traditionally in this society have been regarded as erogenous zones. These still include (whether justifiably or not in the eyes of all) the female, but not the male, breast," according to court documents.

While this case is from 1991, and there have many gender discrimination cases since then, the Fourth Circuit court seems to have accepted an argument similar to the one Ocean City has made in its case, said Jana Singer, a law professor at the University of Maryland who teaches and writes on gender discrimination and family law.

The second observation from Bredar points out the similarities between the topless ban violated in the 1991 case and Ocean City's emergency ordinance on the same subject matter.

Ocean City's ordinance was made by its elected representatives, who are arguably authorized to speak in a way that reflects the public's sensibilities, Bredar states in the third observation.

This observation means the court is willing to give some credence to public sensibilities, Singer said. But it is also the court's role to ensure gender classifications that have been historically stigmatized are not used that way.

The judge says in his fourth observation that the plaintiffs are relying on one court decision from the District of Colorado — Fort Collins v. City of Fort Collins, Colorado — which aligns with their position. This 2017 case is currently on appeal to the Tenth Circuit, which means it could be affirmed or denied, Singer said.

This Colorado decision appears to be an outlier due to multiple other court rulings made on both the federal and state levels that do not favor the plaintiffs' position, Bredar states in his fifth observation. He then cites six examples of similar cases that ruled in against the plaintiffs' position.

In his sixth and final observation, Bredar states that the U.S. District Court of Maryland "will, as of course it must, respect the precedent set in Biocic."

"Ocean City has the weight of precedent on its side, but what may undercut that is the fact that some of the case the town relies on are old," Singer said.

If there is a claim from the plaintiffs under Maryland's equal protection clause, then Ocean City's ordinance may be held to a higher standard due to the state's stricter scrutiny, Singer said. But this case is hard to predict, she added.

At the hearing, both the plaintiffs and the defendant will be free to present evidence on the question of whether public sensibilities are accurately reflected in Ocean City's ordinance, according to court documents.

In summer 2016, Eline contacted the beach patrol and questioned Ocean City laws on toplessness. She is an advocate for “top freedom,” the stance that women should be able to appear topless in public, as men do.

Ocean City didn't have a ruling on the issue until the following summer, when the question arose again and the town officials became inundated with phone calls. By June 9, 2017, the town issued a statement that "Ocean City is not a topless beach and will not become a topless beach."

This prompted officials to call an emergency meeting the following day to pass an ordinance that stated: "There is no constitutional right for an individual to appear in public nude or in a state of nudity."

After the ordinance was passed, Eline hired Jacob to represent her, and the federal civil suit was filed in January. It is unclear how long the lawsuit could continue after the hearing in September, but it has the potential to linger into 2019 as lawyers argue in the U.S. District Court of Maryland.